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2022 DIGILAW 789 (HP)

Chander Dass v. Madho Dass

2022-12-07

SATYEN VAIDYA

body2022
JUDGMENT : (Satyen Vaidya, J.) 1. By way of instant petition, petitioner has assailed order dated 04.10.2019, passed by learned District Judge, Kullu in CMA No. 02/2019, whereby order dated 16.05.2019, passed by learned Sub Judge, Manali in CMA No. 165 of 2018 (Civil Suit No. 162 of 2018) was reversed. 2. Parties hereinafter shall be referred to by the same status as they hold before learned Trial Court. Petitioner is the plaintiff and respondents are the defendants. 3. Plaintiff has filed a suit against defendants seeking relief to the following effects:- (i) The defendants themselves, through their agents, servant, labourers, and family members may be restrained from interfering in the ownership and dispossessing the plaintiff from suit house and the suit land comprised in Khata/Khatouni No. 387/564, Khasra No. 1653 measuring 00-04-85 hectares and comprised Khata/Khatouni No. 385/562, Khasra No. 1651, 1647, 1869/1652 measuring 00-06-51 hectares situated at Muhal and Phati Sajla Kothi Barshai, Tehsil Manali, Distt. Kullu, H.P. or causing any sort of interference in any other manner over the same by passing a decree for permanent prohibitory injunction.” 4. Plaintiff claims himself to be the owner in possession of the suit property and on such basis claimed the relief, as noticed above, in the suit. 5. In defence, the defendants disclosed that a decree of Civil Court already existed in favour of defendant No. 1 in respect of the suit property. Previous Suit No. 24/1998 was decided by learned Senior Sub Judge, Lahaul & Spiti at Kullu, vide judgment and decree dated 22.08.1998, on the basis of compromise effected between the parties. Under the said decree, plaintiff was liable to pay Rs. 30,000/- per annum to defendant No. 1 on or before 31st day of March every year and in default defendant No. 1 was held entitled to possession of the suit property. Though, plaintiff had not disclosed the factum of earlier suit and decree passed therein in the plaint, however, he had to admit such fact in the replication. 6. Alongwith the present suit, plaintiff also prayed for interim injunction by filing application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The interim injunction was sought in the same terms as was claimed as relief in main suit. 7. 6. Alongwith the present suit, plaintiff also prayed for interim injunction by filing application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The interim injunction was sought in the same terms as was claimed as relief in main suit. 7. Learned Trial Court allowed the application for interim injunction of the plaintiff and restrained the defendants from interfering over the suit land except by due process of law till final disposal of the suit. 8. Aggrieved against the order passed by learned Trial Court, defendants approached learned Appellate Court by filing appeal under Order 43 Rule 1(r) of the Code of Civil Procedure. Learned Appellate Court allowed the appeal and dismissed the application of plaintiff under Order 39 Rules 1 and 2 of Code of Civil Procedure, hence present petition. 9. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 10. Undisputed facts are that plaintiff is son of defendant No. 1. Civil Suit No. 24/1998 was filed by defendant No. 1 before learned Senior Sub Judge, Lahaul & Spiti at Kullu, whereby the gift in respect of the suit property executed by mother of the plaintiff in his favour was challenged. The suit was compromised between plaintiff and defendant No. 1. Plaintiff agreed to pay Rs.30,000/- per annum to defendant No. 1 and it was further agreed that in case of default being committed by plaintiff, defendant No. 1 would be entitled to possession of the suit property. 11. Now, the dispute has arisen. Whereas, according to plaintiff, he has always been ready and willing to pay the amount in terms of decree passed in Civil Suit No. 24/1998, but was unable to do so as defendant No. 1 has refused to accept the amount, on the other hand, defendant No. 1 has filed the Execution Petition No. 11/2015 before learned Senior Sub Judge, Lahaul & Spiti at Kullu, for executing the compromise decree dated 22.08.1998, passed in Civil Suit No. 24/1998, on the premise that plaintiff had committed default in making the payment of Rs. 30,000/- per annum to defendant No.1. Execution Petition No. 11/2015 is still pending. 12. During the pendency of the aforesaid execution petition, the present suit came to be filed by the plaintiff. 30,000/- per annum to defendant No.1. Execution Petition No. 11/2015 is still pending. 12. During the pendency of the aforesaid execution petition, the present suit came to be filed by the plaintiff. The tone and tanor of the plaint instituted by plaintiff reveals that the decree passed in Civil Suit No. 24/1998 is not under challenge as such. In absence of such challenge, the decree in Civil Suit No. 24/1998 retains all its efficacy. 13. Learned Appellate Court has rightly concluded that it is for the Executing Court to decide on the executability of the decree passed in Civil Suit No. 24/1998 and on such premise, appeal of defendant No. 1 has been accepted. 14. As noticed above, the Execution Petition No. 11 of 2015 was already pending when the plaintiff filed the suit in the year 2018. The very fact that defendant No. 1 had filed the execution reveals his intent of getting the possession of suit property by due process of law. In view of this, the apprehension of plaintiff of forcible dispossession was totally misplaced. It appears that just for gaining undue advantage, plaintiff had intentionally and deliberately suppressed material facts like decree passed in previous suit between the same parties as also the pendency of execution petition. In such view of the matter also, plaintiff was not entitled for any discretionary and equitable relief. 15. By claiming the relief, as prayed for, by plaintiff in the suit or by way of application under Order 39 Rules 1 and 2 of the CPC, plaintiff has practically sought an injunction in the nature which has the implication of restraining defendant No.1 from prosecuting a judicial proceedings pending at the time of institution of the suit. In addition, the relief of injunction as claimed by the plaintiff, if granted in his favour will amount to restraining defendant No. 1 from prosecuting the proceedings in a Court which is not subordinate to the Court from which the relief is sought. Both these reliefs are specifically barred under Clause (a) and (b) of Section 41 of Specific Relief Act. In view of such legal impediment also, plaintiff cannot be granted the relief as prayed by him in interim. 16. In light of above discussion, there is no merit in the petition and the same is accordingly dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.